26 S.C. 296 | S.C. | 1887
The opinion of the court was delivered by
The respondent, Stanley Dixon, was summoned before E. T. Legare, a trial justice for Berkeley County, charged on oath of the appellant with being-in possession of certain lands and tenements of one Parish Anderson without warrant or authority of law, and required to show cause before the trial justice on the 9th day of November, A. D. 1885, why he should not be ejected from the premises. The summons was dated on November 2,1885, and served on November 5. Dixon appeared on November^, and upon oath that the trial justice was a material witness in the cause (the said trial justice having acted as the agent of the landlord), he demanded that the cause be transferred to the nearest trial justice. And on the same day he made return to the summons to show cause, denying that he was in possession without authority of law, and alleging that he held the premises under a written lease, and that he was not indebted for rent, having paid the same up to October 8, 1885. To this return was attached a receipt of E. T. Legare, the trial justice, acknowledging the payment of rént in full, $12, dated October 8, 1885. Also a copy of lease, as follows : “March 8th, 1885. Agreement between Silvy Moutry and Stanley Dixon. Silvy Moutry, the first part, agrees to let Stanley Dixon, the second part, have the privilege of the store that is on the Bare Swamp Road, binding the lot Gibbes tract for five years, or as long as he wants it, for four dollars per month when it is in use.”
The trial justice heard the case and ejected Dixon, on the ground that no sufficient cause had been shown. Dixon appealed to the Circuit Court, Judge Wallace presiding, who passed an
4 It should have been stated above that the grounds of appeal from the trial justice court to the Circuit Court were : 1st. That the case should have been transferred to the nearest trial justice on Dixon’s affidavit. 2d. That no opportunity was given by the trial justice to Dixon’s attorney to be heard on the merits. And, 3d. That the trial justice erred in deciding the cause after motion to transfer.
The appeal to this court is by Sylvie Moultrie, the respondent below, who claims that his honor erred in holding that there was no rent due when the action was brought, and that the “receipt for rent did away with the effect of the notice to quit.” And, also, that he erred in not holding as claimed by the landlord, that there could be no appeal to the Circuit Court in a case like this. And, further, that he should have held that the landlord had a right to possession when rent was due and unpaid, and that subsequent payments did not prevent the landlord from enforcing his statutory right, which had accrued when the due rent was not paid.
Whether or not all rent had been paid before the action was commenced, was a question of fact, which is beyond our province; but in passing we may say that there seems to be no doubt that his honor found correctly on this subject. The receipt of the trial justice himself is distinct, that all rent up to October 8 had been paid in full.
According to the terms of the lease, even supposing that the case was one between landlord and tenant under section 1819, General Statutes, and was brought because of the non-payment of rent, the rent having been paid, the service of the notice to quit, probably became inoperative, as the acceptance of the rent condoned its previous non-payment, especially as the summons to
Doubtless Sylvie Moultrie intended to have a proceeding instituted under section 1819, General Statutes, which provides for the summary ejectment of tenants holding over, or who fail to pay the rent when it becomes due, as appears from her affidavit made before the trial justice initiatory to the proceeding. But this affidavit was not incorporated in the summons, either in full or in substance. In that the respondent, Dixon, was charged with being in possession of the land without warrant- or authority of the law. In other words, that he was a trespasser, and on that account he should show cause why he should not be ejected. And inasmuch as trespassers can be ejectedtby trial justices under the act of 1883 only, Dixon was well warranted in supposing that it was under that act that he was to answer. Besides, the time given in the summons to answer and show cause, was seven days from its date. True, it was not served until four days before the 9th, the day fixed for the hearing, but still the time was not that specified in section 1819. No doubt, trial justices have jurisdiction under the act of. 1883, supra, where a person has gone into the possession * * * of the lands of another without his consent or without warrant of law, thereby becoming trespassers, but in such case the right of appeal is expressly provided for, section 3 of the act saying: “That either party to these proceedings shall have the right of appeal.”
Our conclusion being that the proceeding before the trial justice, tested by the charge which Dixon was called to answer in the summons, was to eject an alleged trespasser, and not a tenant for failure to pay rent, we think that Dixon had the right of appeal, and therefore the order of the presiding judge cannot be
It is the judgment of this court, that the order below be affirmed.
